R v Sigley [2002] QCA 11

Court of Appeal (Qld)|2002-02-04|Before: Murdo P, Thomas JA, Ambrose J

THE PRESIDENT: The applicant pleaded guilty to one count of fraud in the District Court at Southport and was sentenced to two years' imprisonment suspended after six months with an operational period of three years.

The applicant claims the sentence was manifestly excessive and the learned Judge failed to place sufficient emphasis on the mitigating factors.

The applicant was an office manager for a masonry business which supplied bricks to subcontracted bricklayers. She was dismissed from her position after failing to attend work and a new office manager identified a number of suspicious book entries in the business accounts.

The offence occurred over a six month period from July 1998 to January 1999. The applicant used the company's on-line direct debit arrangements with the bank to obtain money for her own purposes and made false entries in the books of the business to disguise her dishonesty, which involved 12 separate transactions of amounts varying from $200 to $2,500.

On one occasion she paid a cash cheque to herself and falsely recorded the payee in the company's books. On another occasion she used the business Visa card to pay school fees of $2,500. On the other occasions, she transferred funds directly into her own bank account.

The total amount misappropriated was approximately $11,000. She has repaid $2,000, but $9,000 remains outstanding. Her dishonesty was simplistic and would in time inevitably be disclosed.

The applicant was 49 years old at sentence and has no prior convictions. She is divorced and resided with her two children, 13 and 15, and was their sole support. The applicant has had a lifetime of more than her share of hardship. She was married first at 17 and has an adult child of that marriage, which ended in divorce. The second marriage also ended in divorce.

In 1984 she commenced a de facto relationship with the father of her younger two children. In 1987 she discovered that he was a paedophile and had been interfering with her daughter's friend and her best friend's daughter. She ended the relationship. She has given evidence against him and he has been convicted.

In 1991, her brother was murdered and his stepson was charged with but not convicted of that offence. In 1993 she married again. That relationship too broke down, much to her deep disappointment.

Her daughter from her first marriage ran away from home at 13 and returned pregnant when she was 15. That daughter and the daughter's two children aged 11 and 5 live with her and her other children. The younger grandchild is most severely disabled and she assists her elder daughter, who is studying nursing at the Gold Coast Campus at Griffith University, in the child's care.

Although she has worked since completing her schooling primarily in office work, accounting and bookkeeping, she is now predominantly a homemaker for her children and grandchildren. She receives a pension and does some part-time casual work. At sentence, she offered to pay restitution of the outstanding amount, but her counsel conceded this would be difficult for her.

A report was tendered from her general practitioner, who had been treating her since 1984. He noted that the applicant has had psychiatric counselling and has been prescribed anti-depressant medication. The counselling and medication are ongoing. The doctor noted that despite her psychological difficulties and the trauma she has endured over 15 years, she appears to work hard and strives to maintain a stable home life and provide the best she can for her children.

The applicant has not given any reason or explanation for her dishonest conduct. The serious aspect of this offence, which warranted a salutary sentence both as a specific and general deterrence is that the applicant as an office manager and bookkeeper was in a position of trust to her employer and to all those who relied upon the business for their livelihood. The maximum penalty is 10 years' imprisonment.

The learned sentencing Judge noted in his sentencing remarks, "Your plea of guilty was made very late and although it has saved the State substantial costs of a trial it does not indicate a great deal of remorse."

In my view, this comment shows error on the part of the learned sentencing Judge. Although the plea of guilty was not an early one in terms of the applicant being charged with the commission of the offence, both counsel agreed at sentence that it came about after successful negotiations with the Prosecution as to the particulars of the charge to which she pleaded guilty, and that she pleaded guilty within a few days of those successful negotiations. That plea and the applicant's payment of compensation did indicate remorse.

The learned sentencing Judge gave insufficient weight to the plea of guilty and the remorse shown by both the plea of guilty and the payment of partial compensation.

Other factors in mitigation were the applicant's lack of prior convictions, her role as primary caregiver and her sad background which has caused her psychological difficulties, which, it can be inferred, played a role in the commission of these offences.

It is not submitted on behalf of the applicant that the two year sentence is excessive but rather that this Court in exercising its discretion afresh should now suspend the sentence forthwith.

The authorities relied upon by both counsel on the appeal,

R v. Ferguson, CA No 381 of 1995, R v. Baker, CA No 90 of 1996, 23 April 1996 and R v. Cox, CA No 367 of 1995,

15 December 1995 support the conclusion that on the facts of this case, a sound exercise of the sentencing discretion would have been a sentence of either two years' imprisonment fully suspended or suspended after a short term of imprisonment, up to six months. The sentence imposed was therefore not manifestly excessive but this Court, because of the error made, is able to exercise its discretion afresh.

Had I been sentencing the applicant at first instance, I would have fully suspended the two year term of imprisonment and awarded some partial further restitution. The applicant has now served over three months' imprisonment and, in circumstances where the payment of further compensation will be difficult, to order additional restitution now would be excessive. In all the circumstances, the appropriate sentence is to order that the sentence of imprisonment now be suspended forthwith.

I would grant the application, allow the appeal, and instead of suspending the sentence after six months, suspend the sentence as from 4 February 2002. Otherwise I would confirm the sentence imposed at first instance.

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